The State Of Manipur Represented ... vs Shri Moirangthem Indrakumar ...
2023 Latest Caselaw 169 Mani

SHAMURAILATPAM                   Digitally signed by SHAMURAILATPAM
                                 SUSHIL SHARMA
SUSHIL SHARMA                    Date: 2023.04.28 16:54:08 +05'30'
                                                                             Page |1


                      IN THE HIGH COURT OF MANIPUR
                                AT IMPHAL

                         Review Petition No. 12 of 2022
                          Ref:- WP(C) No. 365 of 2017

               1. The        State of Manipur represented by the
                   Commissioner/Secretary (Power), Government
                   of Manipur, Secretariat Complex, Babupara, P.O.
                   & P.S. Imphal, District Imphal West, Manipur-
                   795001.
               2. The Manipur State Power Distribution Company
                   Limited through its Managing Director, MSPDCL
                   having its Office at 3rd Floor, New Directorate
                   Building near 2nd MR Gate, P.O. & P.S. Imphal,
                   District Imphal West, Manipur - 795001.
                                                     .... Review Petitioners/
                                                Respondents in Writ Petition

-Versus-

Shri Moirangthem Indrakumar Singh, aged about 40 years, S/o M. Uttam Singh of Leimaram Awang Leikai, P.O. & P.S. Nambol, District Bishnupur, Manipur-795134.

... Respondent

BEFORE HON'BLE THE ACTING CHIEF JUSTICE MR. M.V. MURALIDARAN

For the Petitioners :: Mr. S. Nepolean, GA

For the Respondent :: Ms. L. Sillori, Advocate

Date of Hearing and reserving Judgment & Order :: 31.03.2023

Date of Judgment & Order :: 25.04.2023

Review Petition No. 12 of 2022 (Ref:- WP(C) No. 365 of 2017) Page |2

JUDGMENT AND ORDER (CAV)

This review petition has been filed by the review

petitioners to review the order dated 3.5.2018 passed in W.P.(C)

No.365 of 2017.

2. W.P.(C) No.365 of 2017 has been filed by the

respondent for issuance of a writ of mandamus directing the

review petitioners herein to pay a sum of Rs.30 lakh as

compensation on the ground that the petitioner sustained 70%

disability leading to amputation of his right arm due to the

negligence on the part of the review petitioners. The said writ

petition was allowed on 3.5.2018 directing the review petitioners

to pay a sum of Rs.10 lakh as compensation to the respondent

within a period of 60 days from the date of receipt of a copy of

this order. Alleging that there is an error in the said order, the

review petitioners have filed this review petition.

3. Mr. S. Nepolean, the learned Government

Advocate appearing for the review petitioners submitted that the

writ petition was disposed of without the affidavit-in-opposition of

the review petitioners and, as such, relevant documents which

were directly or indirectly related with the case could not be

placed before this Court, resultantly, the writ petition was decided

Review Petition No. 12 of 2022 (Ref:- WP(C) No. 365 of 2017) Page |3

in favour of the respondent. He would submit in the event the

review petitioners were allowed to file their affidavit-in-opposition

by giving one more opportunity before the writ petition was

disposed of, the order dated 3.5.2018 might have been negative

because of the fact that as per the records of the State

Government, the electrical accident was never reported either by

the respondent or by his family members. As per the enquiry

report submitted by the Deputy General Manager,

Churachandpur Division, MSPDCL who is the competent

authority to do so and who has conducted the enquiry as per

verbal report given on 4.7.2016 by one Utam Singh of Leimaram

Village who is the father of the respondent, the electrical accident

took place on 13.6.2016 at around 1.00 p.m. while the

respondent was repairing the mobile telecommunication gadget

on the roof top of SBI Tuibong Branch building.

4. The learned senior counsel further submitted that

the accident took place because of the victim accidently touched

the High Tension conductor stringed adjacent to the building with

his head while climbing down from the roof. It is stated in the

enquiry report that the said SBI building was once the control

room of 33/11 KV Tuibong Sub-Station and although it was RCC

roofing, there was no steps or upstairs to climb the roof top as it

Review Petition No. 12 of 2022 (Ref:- WP(C) No. 365 of 2017) Page |4

was initially designed for control room. The existing 11 KV lines

were also the same line which was used when the control room

was functioning. However, the victim used a private ladder to

climb the roof top for the purpose of his own private works without

any prior information to the concerned authority. Therefore, the

electrical accident which took place on 13.6.2016 might not have

happen if either the respondent or the Linquest Telecom Limited

or the authorities of SBI for whom the respondent was on duty

have given notice in writing of his intention to the supplier and to

the Inspector as required under Rule 82 of the Indian Electricity

Rules, 1956, which is mandatory as it has penal provision under

Rule 140 of the Indian Electricity Rules, 1956. Since the

respondent or his employer or the authorities of the SBI have not

given any notice in writing, the respondent or his employer or the

authorities of SBI have violated the mandatory provision of Rule

82 of the Indian Electricity Rules, 1956 and, as such, the review

petitioners cannot be held responsible for the electrical accident.

5. Adding further, the learned senior counsel for the

review petitioners submitted that the writ petition is not

maintainable for non-joinder of necessary parties. Since the

electrical accident took place while the respondent was on his

official duty as directed by the employer for installation of

Review Petition No. 12 of 2022 (Ref:- WP(C) No. 365 of 2017) Page |5

Monopole attached ODU to it for the SBI, Churanchandpur

Branch, the respondent should have impleaded the Linkquest

Telecom Limited i.e. his employer and the SBI, Churachandpur

Branch for whom he was executing the work. Furthermore, the

decisions relied upon in the order are not directly or indirectly

applicable with the facts of the present case. Since the impugned

order is a clear case of an error apparent on the face of the record

and non-consideration of relevant documents, the same is to be

reviewed. In support, the learned senior counsel placed reliance

upon the decision of the Hon'ble Supreme Court in the case of

Rajender Singh v. Lt. Governor, Andaman & Nocobar

Islands, (2005) 13 SCC 289.

6. Supporting the impugned order, the learned

counsel for the respondent submitted that there is no error on the

face of record and the order impugned is well considered order

and, therefore, no review is warranted. He would submit that no

report has been filed with the company or the police regarding

the incident. Be that as it may, the issue cannot be considered

is the error apparent on the face of the impugned order dated

3.5.2018. Thus, a prayer has been made to dismiss the review

petition.

Review Petition No. 12 of 2022 (Ref:- WP(C) No. 365 of 2017) Page |6

7. This Court considered the rival submissions and

also perused the materials available on record.

8. The respondent has filed the writ petition claiming

compensation of Rs.30 lakh alleging that he joined the service as

Engineer on 10.11.2014 in Linquest Telecom Limited, which is a

privately owned telecommunication company, with an initial pay

of Rs.24,000/- per month. The Linquest Telecom Limited is

working in partnership with the Bharti Airtel Limited along with

some other private telecom companies. The Bharti Airtel Limited

is providing all telecom services to the State Bank of India with

the help of those private companies including Linquest Telecom

Limited. On 13.6.2016, the respondent was on duty at SBI

Tyibong Churachandpur for installing a Monopole and attach on

ODU to it on the roof top of the SBI building which would be

connected with one IDU in the server room of the bank. After

completing the work on the roof top, the respondent got electric

shock suddenly from the HT power line on the neck and fell down

on the ground unconscious. Thereafter, the respondent was

admitted in Raj Medicity for treatment on 14.6.2016 and

subsequently he was further given treatment to Downtown

Hospital at Guwahati on 2.7.2016.

Review Petition No. 12 of 2022 (Ref:- WP(C) No. 365 of 2017) Page |7

9. As his condition aggravated, the right arm of the

petitioner was amputated below the ankle to save his life in that

hospital. In the meantime, the respondent was transferred to

Bihar Jharkhand Circle on 30.11.2016. However, due to physical

condition, the respondent did not join new place of posting and,

accordingly, the service of the respondent was terminated by an

order dated 14.12.2016. Stating that he would have led a normal

life more than an additional 40 years if the accident was not

happened and taking the monthly salary at Rs.24,000/- for

another 24 years, the respondent calculated the loss of earning

at Rs.49,12,000/-. Since the respondent suffered 70% of the

disability, he claimed compensation of Rs.30 lakh from the State

respondents. This Court, upon considering the arguments of

both sides, directed the State respondents to pay a

compensation of Rs.10 lakh to the petitioner.

10. The review petitioners sought to review the order

dated 3.5.2018 mainly on the ground that the writ petition was

disposed of without the affidavit-in-opposition of the review

petitioners and if the review petitioners were allowed to file their

affidavit-in-opposition, the order dated 3.5.2018 might have been

negative because of the fact that as per the records of the State

Review Petition No. 12 of 2022 (Ref:- WP(C) No. 365 of 2017) Page |8

Government, the electrical accident was never reported either by

the respondent or by his family members.

11. As far as non-providing of opportunity to the review

petitioners for filing affidavit-in-opposition is concerned, on a

reading of the order dated 3.5.2018, this Court recorded that

despite a number of opportunities being granted to the review

petitioners, no counter affidavit has been filed on their behalf and

therefore, the averments made in the petitioner shall be deemed

to have been admitted by the review petitioners in terms of a

catena of decisions rendered by the Hon'ble Supreme Court in

this regard.

12. The non-filing of the affidavit-in-opposition to the

writ petition by the review petitioners is the fault on the part of the

review petitioners and if really, they are interested in contesting

the writ petition, the review petitioners ought to have filed their

counter affidavit within a time and failure on the part of the review

petitioners in not filing the counter affidavit is not a ground to

review the order dated 3.5.2018 passed in the writ petition.

Though no counter affidavit filed on behalf of the review

petitioners, on their side, learned Additional Advocate General

argued the matter extensively by raising the maintainability issue.

Review Petition No. 12 of 2022 (Ref:- WP(C) No. 365 of 2017) Page |9

13. This Court, after referring to the decisions relied

upon by the learned Additional Advocate General in the cases of

Chairman, Grid Corporation of Orissa Ltd. and others v. Smt.

Sukamani Das, (1999) 7 SCC 298 and SDO, Grid Corporation

of Orissa Ltd. V. Timudu Oram, (2005) 6 SCC 156 and the

decisions in the cases of Rudul Sah v. State of Bihar and

others, (1983) 4 SCC 141; Nilabati Behera (Smt) alias Lalita

Behera v. State of Orissa and others, (1993) 2 SCC 746 and

D.K.Basu v. State of West Bengal, (1997) 1 SCC 416, held that

the High Court in exercise of power under Article 226 of the

Constitution of India is competent to award compensation in

cases where the fundamental rights guaranteed in the

Constitution have been infringed by the State authorities. This

Court, by relying upon the decision of the Hon'ble Supreme Court

in the cases of MP Electricity Board v. Shail Kumari and

others, (2002) 2 SCC 162 and Raman v. Uttar Haryana Bijli

Vitran Nigam Ltd., Civil Appeal No.11466 of 2014, decided on

17.12.2014, observed as under:

"[8] In view of and in terms of the decisions, as referred to hereinabove, relating to payment of compensation in the cases arising out of incidents of electrocution due to the negligence on the part of the State authorities, this court is

Review Petition No. 12 of 2022 (Ref:- WP(C) No. 365 of 2017) P a g e | 10

of the view that the instant writ petition deserves to be allowed by this court. Therefore, the question that arises for consideration by this court is as to what amount of compensation would be just and reasonable in the facts and circumstances of the present case. In Raman case (supra), the Hon'ble Supreme Court was confronted with a question as to how the just and reasonable compensation be determined in a case and after examining its earlier decisions, it came to the conclusion that it is difficult for any court to lay down rigid tests which should be applied in all situations and that in the Indian context, various factors like educational qualification, nature of job, past performance, scope of higher salary, the expenditure that the claimant has incurred and is likely to incur, family dependence, inflation etc. should be taken into consideration. While determining the compensation, the Hon'ble Supreme Court has emphasized the need to strike a balance between the inflated and unreasonable demands of a victim and the equally untenable claim of the opposite party saying that nothing is payable. In view of tis earlier decisions referred to therein, the Hon'ble Supreme Court was of the view that the compensation awarded at Rs.60 lakhs in the judgment of the learned Single, out of which Rs.30 lakhs were to be deposited jointly in the name of the appellant

Review Petition No. 12 of 2022 (Ref:- WP(C) No. 365 of 2017) P a g e | 11

represented by his parents as natural guardian and the Chief Engineer or its nominee representing the respondents in a fixed deposit till he attains the age of majority, was just and proper but set aside the portion thereof as mentioned in its para 19 of the judgment and order and modified it accordingly. But the Hon'ble Supreme Court rejected the use of multiplier system as the only basis for purpose of determining the just and reasonable compensation in such cases like the present one."

14. In this review petition, the review petitioners

contended that while the respondent was repairing the mobile

telecommunication gadget on the roof top of the SBI Tuibong

Brach building, the accident took place because of the

respondent accidently touched the high tension conductor

stringed adjacent the building with his head while climbing down

from the roof. Since the respondent or his employer or the

authorities of the SBI have not given any notice in writing, the

respondent or his employer or authorities of SBI have violated

the mandatory provision of Rule 82 of the Indian Electricity Rules

and, as such, the review petitioners cannot be held responsible

for the electrical accident.

Review Petition No. 12 of 2022 (Ref:- WP(C) No. 365 of 2017) P a g e | 12

15. On a perusal of the order dated 3.5.2018, it is seen

that the issue to hold a person liable for tort, the negligence on

the part of that person must be established by the petitioner and

moreover, if there are disputed questions of facts, the appropriate

remedy would be to approach the civil court of competent

jurisdiction was raised by the review petitioners and rightly

answered by this Court by observing that it is an undeniable fact

that compensation can be claimed by an aggrieved person under

the provisions of various laws enacted by the Union of India or

the States which is a remedy available in private law and that

compensation can be claimed in public law as well. While

allowing the writ petition, this Court further observed as under:

"[6] ..... The purpose of awarding compensation is to compensate the loss or injury suffered by a person so as to make good to him, although he cannot be compensated fully in terms of money. In other words, it is to mitigate his hardship in terms of money. The quantum of compensation will definitely depend upon the facts and circumstances of each case, as no straightjacket formula which will be applicable in all cases, can be laid down by the court.

Compensation can be broadly divided into two

- one, a compensation that can be claimed in private law and two, a compensation that can

Review Petition No. 12 of 2022 (Ref:- WP(C) No. 365 of 2017) P a g e | 13

be claimed in public law for violation of fundamental rights. So far as the present case is concerned, it falls in the second category, in the sense that the compensation is being claimed by the petitioner for the violation of his fundamental rights and therefore, the contention of the learned counsel appearing for the respondents is devoid any merits and is not acceptable to this court. ..."

16. If really, the review petitioners are aggrieved by the

awarding of compensation payable by them to the respondent,

they ought to have filed an appeal against the said findings and

the review would not maintainable.

17. It is pertinent to note that challenging the order

dated 3.5.2018 passed in W.P.(C) No.365 of 2017, the review

petitioners have filed W.A.No.18 of 2018. However, for one

reason or the other, W.A.No.18 of 2018 has been withdrawn by

the review petitioners on 16.3.2022 with liberty to file a fresh. On

the contrary, facing with the notice in Contempt Case No.46 of

2022, the review petitioners have filed the present review petition

on 4.7.2022 after a lapse of nearly four months of the dismissal

of W.A.No.18 of 2018. The aforesaid factual scenario, clearly

establishes the attitude of the review petitioners in delaying the

payment of compensation to the respondent by filing writ appeal

Review Petition No. 12 of 2022 (Ref:- WP(C) No. 365 of 2017) P a g e | 14

first and then review petition by falsely stating that there is an

error apparent on the face of record. The approach adopted by

the review petitioners firstly filing a writ appeal and subsequently

withdrawing the same and then filing the review petition with a

gap of nearly four months alleging there is an error in the order

is not appreciable.

18. As stated supra, if really the review petitioners are

aggrieved by the order dated 3.5.2018 passed in the writ petition,

they ought to have challenged the same by way of writ appeal.

19. Under Order 47, Rule 1 CPC, a judgment may be

open to review, inter alia, if there is mistake or an error apparent

on the face of the record. An error which is not self-evident and

has to be detected by a process of reasoning can hardly be said

to be an error apparent on the face of the record justifying the

court to exercise its power of review under Order 47, Rule 1 CPC.

In exercise of the jurisdiction under Order 47, Rule 1 CPC, it is

not permissible for an erroneous decision to be reheard and

corrected. A review petition, it must be remembered has a limited

purpose and cannot be allowed to be an appeal in disguise.

20. Time and again, the Hon'ble Supreme Court held

that review is not appeal in disguise. It follows, therefore, that

Review Petition No. 12 of 2022 (Ref:- WP(C) No. 365 of 2017) P a g e | 15

the power of review can be exercised for correction of a mistake

but not to substitute a view. Such powers can be exercised within

the limits of the statute dealing with the exercise of power. The

review cannot be treated like an appeal in disguise.

21. In Meera Bhanja v. Nirmala Kumari Choudhury,

(1995) 1 SCC 170, the Hon'ble Supreme Court held:

"8. It is well settled that the review proceedings are not by way of an appeal and have to be strictly confined to the scope and ambit of Order 47, Rule 1, while dealing with similar jurisdiction available to the High Court while seeking to review the orders under Article 226 of the Constitution, this Court in Aribam Tuleshwar Sharma v. Aribam Pishak Sharma, (1979) 4 SCC 389 speaking through Chinnappa Reddy, J. has made the following pertinent observations:

"It is true there is nothing in Article 226 of the Constitution to preclude the High Court from exercising the power of review which inheres in every court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable errors committed by it. But, there are definitive limits to the exercise of the power of review.

Review Petition No. 12 of 2022 (Ref:- WP(C) No. 365 of 2017) P a g e | 16

The power of review may be exercised on the discovery of new and important matter or evidence which, after the exercise of due diligence was not within the knowledge of the person seeking the review or could not be produced by him at the time when the order was made; it may be exercised where some mistake or error apparent on the face of the record is found, it may also be exercised on any analogous ground. But, it may not be exercised on the ground that the decision was erroneous on merits.

That would be the province of a court of appeal. A power of review is not to be confused with appellate power which may enable an appellate court to correct all manner of errors committed by the subordinate court.""

22. In the case of Lily Thomas v. Union of India,

(2000) 6 SCC 224, the Hon'ble Supreme Court observed and

held that the power of review can be exercised for correction of

a mistake but not to substitute a view. Such powers can be

exercised within the limits of the statute dealing with the exercise

of power.

Review Petition No. 12 of 2022 (Ref:- WP(C) No. 365 of 2017) P a g e | 17

23. In the case on hand, by filing MC No.4 of 2023, the

review petitioners contended that though the electrical accident

took place on 13.6.2016, no complaint about the accident was

ever reported to the authorities of the MSPDCL, nor to the

Churachandpur Police Station until the father of the respondent

reported the incident verbally to the Deputy General Manager,

MSPDCL only on 4.7.2016. However, soon after the report was

received though verbally on 4.7.2016, a field enquiry about the

electrical incident was conducted and thereafter a detail accident

report dated 11.7.2016 was submitted by the Deputy General

Manager, Churachandpur Division to the General Manager,

Electrical Circle-II, CMSPDCL. In the said report, it has been

mentioned that the said SBI building was once the control room

of 33/11 KV Tuibong, Sub-Station and although it was RCC

roofing, there was no steps or upstairs to climb the rooftop as it

was initially designed for control room. The existing 11 KC lines

were also the same line which was used when the control room

was functioning. However, the victim used a private ladder to

climb the rooftop for the purpose of his own private works without

any prior information to the concerned authority.

24. Admittedly, the aforesaid plea and the report sought

to be filed are very well available with the review petitioners while

Review Petition No. 12 of 2022 (Ref:- WP(C) No. 365 of 2017) P a g e | 18

arguing the writ petition. For the purpose of consideration of the

review petition, the report filed along with MC No.4 of 2013 is

treated as part of the review petition. However, this Court is of

the view that the review petitioners have failed to refer the said

report while arguing the writ petition which was readily available

with them. It is not the case of the review petitioners that those

facts are not within their knowledge or could not be produced by

them at the time when the order was made in the writ petition. In

view of the above, an application for review would lie if the order

has been passed on account of some mistake. Thus, it is clear

that there is total failure on the part of the review petitioners in

defending the writ petition in proper manner. Therefore, under

the aid of review, now the review petitioners cannot sought to the

review the order dated 3.5.2018, as power of review can be

exercised for correction of a mistake but not to substitute a view.

25. Under the Indian Electricity Act, 2003 and the rules

framed thereunder, it is bounden duty of the electricity authorities

to conduct periodical inspection of the lines maintained by them

and to take all such safety measures to prevent accident and

maintain the lines in such a manner that life and property of the

general public is protected. Though the review petitioner

contended that the State authorities have a policy of ex-gratia

Review Petition No. 12 of 2022 (Ref:- WP(C) No. 365 of 2017) P a g e | 19

payment for electrocution cases and the compensation awarded

in the order dated 3.5.2018 is exorbitant and if the aforesaid facts

as well as the provision of law were considered at the time of

hearing of the writ petition, the order dated 3.5.2018 might not

have been passed, the aforesaid are not grounds for reviewing

the order dated 3.5.2018. A blame has to be fastened on the

review petitioners in not properly defending the writ petition by

producing relevant records.

26. Though the review petitioners contended that the

victim used a private ladder to climb the rooftop for the purpose

of his own private works without any prior information to the

concerned authority and therefore, the State authorities are not

held liable to compensation, the said issue cannot be gone into

in the review jurisdiction for the reason that the very point was

raised by the review petitioners in the writ petition and, this Court

held that since the respondent sustained injuries due to

electrocution, the respondent is entitled to compensation. Such

a finding arrived at by this Court is not reviewable. As stated

supra, if really the respondent State is aggrieved by the said

finding, they ought to have assailed by way of appeal not under

review.

Review Petition No. 12 of 2022 (Ref:- WP(C) No. 365 of 2017) P a g e | 20

27. What can be said to be an error apparent on the

face of the proceedings has been dealt with and considered by

the Hon'ble Supreme Court in number of decisions. An error is

an error which is a patent error and not a mere wrong decision.

An order or decision or judgment cannot be corrected merely

because it is erroneous in law or on the ground that a different

view could have been taken by the Court on a point of fact or law.

In any case, while exercising the power of review, the Court

concerned cannot sit an appeal over its judgment.

28. This Court is of the view that no ground as

envisaged under Order 47, Rule 1 CPC has been made out for

the purpose of reviewing the order dated 3.5.2018 passed in

W.P.No.365 of 2017. Further, in view of the scope as discussed

above, if the submissions of the learned senior counsel for the

review petitioners is tested in the light of the materials available

on record including from the perusal of the order dated 3.5.2018

passed in W.P.No.365 of 2017, it would indicate that while

deciding the matter, all aspects of the matter has been duly

considered by the Court and findings have been given.

29. The grounds and the decisions cited by the learned

senior counsel for the review petitioners do not relate to the

scope of review. The order under review has been passed by

Review Petition No. 12 of 2022 (Ref:- WP(C) No. 365 of 2017) P a g e | 21

the Court considering the facts, law and the arguments made and

also materials available on record. No error apparent on the face

of record could be pointed out by the learned senior counsel for

the review petitioners, hence, the decision in the case of

Rajender Singh, supra, relied upon by the learned senior

counsel for the review petitioners do not render any support.

30. The review petitioners are trying to seek a re-

hearing of the writ petition which is not within the scope of review.

As stated supra, the learned senior counsel for the review

petitioners could not point out any error apparent on the face of

the record and the submissions made do not fall within the

parameters of Section 114 read with Order 47, Rule 1 CPC.

31. Having considered the matter, this Court finds that

no grounds of review is made out. The revision petition is

absolutely devoid of merits and is dismissed. No costs.

32. In view of the dismissal of the Review Petition No.12

of 2022, the Contempt Case No.46 of 2022 is directed to be listed

on 15.05.2023 for passing further orders/compliance.

ACTING CHIEF JUSTICE

FR/NFR

Sushil

Review Petition No. 12 of 2022 (Ref:- WP(C) No. 365 of 2017)